We concur with the judge of the Circuit Court, that for want of service of notice of the appeal on Bailey, the assignee, within ten days of the time of filing the decree in the District Court, the appeal must be disallowed.
The language of the statute is very strong and admits of no other interpretation. No appeal shall be allowed in any case from the District to the Circuit Court, unless it is claimed and notice given to the clerk, and also to the other party, within ten days after the entry of the decree or decision appealed from.
The failure to give notice to the other party within the ten days, whether claimant or assignee, is equally fatal to the appeal, as the failure to give the notice to the clerk that the appeal is claimed.
This is in harmony with the policy of the Bankrupt law, second only in importance, as we have recently said in the case of Bailey, Assignee, v. Glover, #fn-s-s [1] to the policy of equal distribution, namely, the necessary of speedy disposition of the bankrupt's assets. In that case this same provision for limiting the time for appeals is referred to as evidence of that policy.
There is in the statute, as printed in the Statutes at Large, what seems to us a manifest clerical error, or verbal mistake in the use of words 'defeated party' as one to be notified of the appeal, and the error is also found in the Revised Statutes, section 4981. The 'defeated party in equity' is generally the one who takes the appeal, and does not, therefore, require notice, but must give it. We can see no use or sense in that word in that connection. The purpose of the act, the remainder of the section in which the word is used, and the impossibility of any other reasonable meaning, requires that the word should be construed 'opposite party,' or 'successful party,' or 'adverse party;' in a word, the party who does not appeal in an equity suit, and who is interested to oppose the appeal.
In any event, the party to be notified in this case was the assignee, Bailey, and he was not notified within the time which the statute makes a condition of the right of appeal, and the decree of the District Court dismissing it is
AFFIRMED.
Notes edit
- ↑ **